The Irony of Cliven Bundy's Unconstitutional Stand

The Nevada rancher isn't just resisting the Bureau of Land Management—he's also fighting against his state's unusual constitutional history.

Twenty-one years ago, rancher Cliven Bundy stopped paying his grazing fees.

Bundy does not recognize federal authority over land where his ancestors first settled in the 1880s, which he claims belongs to the state of Nevada. The Bureau of Land Management disagreed and took him to federal court, which first ruled in favor of the BLM in 1998. After years of attempts at a negotiated settlement over the $1.2 million Bundy owes in fees failed, federal land agents began seizing hundreds of his cattle illegally grazing on public land last week.

But after footage of a BLM agent using a stun gun on Bundy's adult son went viral in far-right circles, hundreds of armed militia supporters from neighboring states flocked to Bundy's ranch to defend him from the BLM agents enforcing the court order. The states'-rights groups, in echoes of Ruby Ridge and Waco, came armed and prepared for violence. "I'm ready to pull the trigger if fired upon," one of the anti-government activists told Reuters. Not eager to spill blood over cattle, the BLM backed down Sunday and started returning the livestock it had confiscated. The agency says it won't drop the matter and will "continue to work to resolve the matter administratively and judicially."

Federalism—genuine states' rights—is perhaps more familiar to Nevadans than to any other state's denizens. To boost the state's ailing economy in the early 20th century, Nevada exploited the federal architecture of American law to create uniquely permissive laws on divorce, gambling, and prostitution, bringing in much-needed tourism revenue and giving the state a distinctive libertarian character. Just this weekend, the state Republican Party dropped statements opposing abortion and same-sex marriage from its platform at their convention, bucking the party's national stance.

But Bundy's understanding of states' rights is far different. As he told Sean Hannity in an interview last week (emphasis added):

Well, you know, my cattle is only one issue—that the United States courts has ordered that the government can seize my cattle. But what they have done is seized Nevada statehood, Nevada law, Clark County public land, access to the land, and have seized access to all of the other rights of Clark County people that like to go hunting and fishing. They've closed all those things down, and we're here to protest that action. And we are after freedom. We're after liberty. That's what we want.

Bundy's claim that the land belongs to Nevada or Clark County didn't hold up in court, nor did his claim of inheriting an ancestral right to use the land that pre-empts the BLM's role. "We definitely don't recognize [the BLM director's] jurisdiction or authority, his arresting power or policing power in any way," Bundy told his supporters, according to The Guardian.

His personal grievance with federal authority doesn't stop with the BLM, though. "I believe this is a sovereign state of Nevada," Bundy said in a radio interview last Thursday. "I abide by all of Nevada state laws. But I don’t recognize the United States government as even existing." Ironically, this position directly contradicts Article 1, Section 2 of the Nevada Constitution:

All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people; and they have the right to alter or reform the same whenever the public good may require it. But the Paramount Allegiance of every citizen is due to the Federal Government in the exercise of all its Constitutional powers as the same have been or may be defined by the Supreme Court of the United States; and no power exists in the people of this or any other State of the Federal Union to dissolve their connection therewith or perform any act tending to impair, subvert, or resist the Supreme Authority of the government of the United States. The Constitution of the United States confers full power on the Federal Government to maintain and Perpetuate its existence, and whensoever any portion of the States, or people thereof attempt to secede from the Federal Union, or forcibly resist the Execution of its laws, the Federal Government may, by warrant of the Constitution, employ armed force in compelling obedience to its Authority.

The paramount-allegiance clause, a product of the era in which Nevada gained statehood, originated in Nevada's first (and unofficial) constitutional convention of 1863. Some 3,000 miles to the east, the Civil War raged between the federal government in the North and West and the rebellion that had swallowed the South. In early 1864, Abraham Lincoln—who wanted more pro-Union states in Congress so as to pass the amendment to abolish slavery, and a few more electoral votes to guarantee his reelection that fall—signed a bill authorizing Nevada to convene an official constitutional convention for statehood. The state constitution's framers, who were overwhelmingly Unionist, retained the clause in solidarity with the Union when they gathered in July 1864.

Nevada isn't the only state with a paramount-allegiance clause. Republicans added similar clauses to Reconstruction-era state constitutions throughout the South, although few survived subsequent revisions after federal troops departed. Even the states that retain the phrase "paramount allegiance" today, like North Carolina and Mississippi, don't share Nevada's explicit constitutional openness toward armed federal intervention to enforce it.

That pro-federal sentiment also guided Nevada's first congressional delegation when it arrived in the nation's capital in early 1865. William Stewart, the Silver State's first senator, proposed an amendment to the U.S. Constitution in December 1865 that would've enshrined a weaker form of the paramount allegiance clause at the federal level:

First—The Union of the States, under this constitution, is indissoluble, and no State can absolve its citizens from the obligation of paramount allegiance to the United States.

Second—No engagement made, or obligation incurred by any State, or by any number of States, or by any county, city, or any other municipal corporation to subvert, impair, or resist the authority of the United States, or to support or aid any legislative convention or body in hostility to such authority, shall ever be held, voted, or be assumed or sustained, in whole or part, by any State or by the United States.

This proposed amendment—which would have resolved secession's constitutionality for all time—did not succeed. The U.S. Supreme Court later ruled in Texas v. White in 1869 that secession had been unconstitutional and that "the Constitution, in all its provisions, looks to an indestructible Union composed of indestructible states." Stewart nevertheless left his mark on the Constitution the same year as White, when he wrote what would become the Fifteenth Amendment, guaranteeing black suffrage.

Two decades after Nevada's founders proclaimed unswerving obedience to federal authority, Cliven Bundy's family first settled the land where he and his supporters now make their heavily armed stand against federal power. It's doubtful even the Nevada Constitution will change their minds—if legal and constitutional arguments could persuade the militia movement, there might not be a militia movement.